trict. The judiciary act of 1789, § 6 (1 Stat. | King, 8 Gray, 501. They may, without doing at L. 76), simply provided that a district judge, violence to language, be construed to mean if unable to attend at the day appointed for that the designated judge is to take temporarily the holding of any term, might, by his written the place which is or has been filled by a regu. order, continue it to any designated time, and lar judge. that, in case of a vacancy, all matters pending in the court should be continued as of course until the first regular term after the filling of the vacancy. Since then there has been repeated legisla lation, each successive statute seemingly intended to make larger provision for the regular and continued transaction of the business of the district court. Thus, in 1850 (9 Stat. at L. 442; Rev. Stat. § 591), an act was passed providing that when any district judge was prevented by any disability from holding any term, and that fact was made to appear by the certificate of the clerk under the seal of the court to the circuit judge, such judge might, if in his judgment the public interests so required, designate and appoint the judge of any other district in the circuit to hold such term and to discharge all the judicial duties of the judge so disabled during such disability. This, it will be no ticed, applied only in case of disability on the part of the regular district judge. Two years thereafter in an act (10 Stat. at L. 5; carried into the Revised Statutes as § 592) like authority was given to call in the judge of some other district when, as shown by the certificate of the clerk, from the accumulation or urgency of business in any district court the public interests so required. This statute contemplated the doubling of the judicial force, and authorized both judges, the regular and the appointed judge, to act separately in the discharge of all duties. Finally, in 1871, an act was passed (16 Stat. at L. 494; Rev. Stat. § 596) which reads as follows: Section 602 throws little light on the question. It does not purport to abolish the term. The existence of a term does not depend on the fact that any business is transacted thereat, nor does any general order of continuance of itself close the term. A simple illustration will demonstrate this. Suppose at the commencement of any regular term of this court a general order should be entered continuing all matters to the succeeding term, no one would contend that such an order, of itself, adjourned the term or prevented the court from adjourning from day to day until such time as it saw fit to order a final adjournment. The officers attending after the continuance of the cases and until the final order of adjournment would unquestionably receive their per diems for at tendance upon a term of the court. The declaration that the process, etc., *shall [601 be "continued, of course," means simply continued without any special order, and was obviously designed to prevent that failure of right which in many cases might otherwise result from the absence of a judge. It is familiar that process is often made returnable at a term, and notices are given of applications for orders at a term. In these and similar cases rights are created which may depend for their continued existence upon some action of the court at the term. Clearly, the statute does not destroy or even temporarily suspend the jurisdiction of the regular judge when appointed over matters pending in his court. But whatever doubts may exist, whether the order of designation by the circuit judge was "It shall be the duty of every circuit judge, within his power, there is another considerawhenever in his judgment the public interest so tion which is decisive of this case. Judge Seyrequires, to designate and appoint, in the man-mour must be held to have been a judge de ner and with the powers provided in section 591, the district judge of any judicial district within 600] his circuit *to hold a district or circuit court in the place or in aid of any other district judge within the same circuit; and it shall be the duty of the district judge, so designated and appointed, to hold the district or circuit [court] as aforesaid, without any other compensation than his regular salary as established by law, except in the case provided in the next section." This gives full power to the circuit judge to act without reference to any certificate from the clerk, whenever in his judgment the pub. lic interests require. It is contended that the words "in the place or in aid of" limit the power of designation and appointment to those cases in which there is an existing district judge. This construction, it is claimed, finds support in section 602, Rev. Stat., which in substance re-enacts the latter part of section 6 of the judiciary act of 1789, to the effect that in case of a vacancy in the office of district judge all matters pending before the court shall be continued, of course, until the next stated term after the appointment and qualification his successor. While in aid of" natura imply some existing judge to be aided, the words "in the place of" do not necessarily carry the same implication. Com. v. He ap facto, if not a judge de jure, and his actions as judgment to the amount necessary to give this court jurisdiction, on writ of error brought by defendant, plaintiff, who brought no writ of error, cannot have the case dismissed for want of Jurisdiction, by reason of such error. Where the judgment actually rendered was for an amount which gives this court jurisdiction, it will not dismiss the writ of error on the ground that it should have been for less. 602]regular on its face, and the rule is *well Bettled that where there is an office to be filled, and one acting under color of authority fills the office and discharges its duties, his actions are those of an officer de facto and binding upon the public. Of course, if he was judge de facto, his orders of the continuance of the term from day to day until February 12, when the regular judge took his place upon the bench, were 3. When a given state of facts is such that reasonorders which cannot be questioned, and the term was kept alive by such orders until Judge Brawley arrived. The record shows that the indictment was not found until after the latter was on the bench. Whether the grand jury was in fact impaneled or called before Judge Brawley took his seat, does not appear from the record. While section 817, U. S. Rev. Stat., provides that, ordinarily, jurors shall, for this district, be drawn at a preceding term, yet such provision does not conflict with the power granted in section 810 to all circuit and district courts, as follows: "And either of the said courts may in term order a grand jury to be summoned at such time, and to serve such able men may fairly differ upon the question as to whether there was negligence or not, the determination of the matter is for the jury. 4. Where a person approached a railroad crossing, driving slowly, with a safe horse, and stopped and looked and listened at a low place where a train could be seen, and neither saw nor heard anything, and stopped again and listened forty or fifty yards from the track, and then drove on, listening all the time and heard nothing. and was struck just as he got to the railroad cut by a train behind time coming around a curve, and injured, the question of his contributory negligence is for the jury. [No. 53.] time, as it may direct, whenever, in its judg- Argued Oct. 18, 1895. Decided Nov. 18, 1895. ment, it may be proper to do so." Under this provision the judge may, at any term, regular or special, and at any time in the term, summon a grand jury. N ERROR to the Circuit Court of the tiff, Emma Griffith, in an action brought by Ohio to review a judgment in favor of plainher against the Baltimore & Ohio Railroad Company for injuries received by collision of the train of that company with the vehicle in which she was riding. Affirmed. See same case below, 44 Fed. Rep. 574, 582. Indeed, we may assume that all the proceed. ings in respect to this case were held before the regular judge of that court, and that the only orders which Judge Seymour made bearing upon this case are the daily orders of continuance of the court and the keeping alive of the term from February 5 to February 12, and these were orders made by a de facto judge of that court, and are, as we have stated, not Statement by Mr. Chief Justice Fuller: open to challenge. The fact that in the recital This was an action brought by Emma Grifof the proceedings the term is spoken of as a fith in the court of common pleas of Licking special term, is immaterial in the face of the county, Ohio, against the Baltimore & Ohio statement that the regular term was opened on Railroad Company, to recover for injuries reFebruary 5 and continued from day to day un-ceived on August 1, 188, by the collision of a til after the proceedings complained of had taken place. It follows from these considerations that the first question certified to this court must be answered in the affirmative. In view of this answer it is unnecessary to consider the second question. The case will therefore be sent back to the court of appeals, with an answer to the first question, as above set forth. train of that company with the vehicle in which plaintiff was then being conveyed. The cause was removed on the petition of the company into the circuit court of the United States for the southern district of Ohio, where it was tried, and resulted in *a verdict in favor of the[604 plaintiff for five thousand dollars. A motion for a new trial was made and overruled and judgment entered on the verdict, with interest added, to review which this writ of error was sued out. The charge to the jury by Sage, J., and his opinion on the motion for new trial are reported, 44 Fed. Rep. 574, 582. The following errors assigned were relied on in the brief for plaintiff in error: "Sixth: The said court erred in refusing to give the ninth charge asked by the plaintiff in error. Seventh. The court erred in refusing to give the tenth charge asked by the plaintiff in error. Tenth. The court erred in overruling the motion of the plaintiff in error for a new trial. Eleventh. Upon the whole record, judgment should have been rendered in said cause in favor of the plaintiff in error and against the de As to jurisdiction of the United States Supreme Court to declare state law void as in conflict with stats Constitution; to revise decrees of state courts as to construction of state laws, see note to Commercial Bank of Cincinnati v. Buckingham, 12: 169. fendant in error, instead of the judgment which was rendered." The instructions thus referred to were as follows: "9. The testimony in this case shows that the plaintiff was guilty of negligence contributing to her injury. Such being the fact, she is not entitled to recover and your verdict must be for the defendant. 10. It was the duty of the plaintiff to stop before driving on this railroad track and allow the train to pass before she attempted to cross, and if she failed so to do and was thereby injured she cannot recover in this case. Messrs. John K. Cowen and Hugh L. Bond, Jr., for plaintiff in error: Before the plaintiff can recover because the signals were not given, he must cause it to appear that this failure of duty brought about the disaster; for, if his own imprudence was the moving cause, he cannot maintain his action, although the company may not have observed the provisions of the statute. Cleveland, C. C. & I. R. Co. v. Elliott, 28 Ohio St. 346: Baltimore & O. R. Co. v. Whitacre, 35 Ohio St. 627, 630: Schuylkill & D. Imp. & R. Co. v. Munson, 81 U. S. 14 Wall. 448 (20: 872); Pleasants v. Fant, 89 U. S. 22 Wall. 120 (22: 782): Schofield v. Chicago, M. & St. P. R. Co. 114 U. S. 615 (29: 224). The fact of the failure to stop immediately before crossing a railroad track is not merely evidence of negligence for the jury, but negligence per se, and a question for the court. North Pennsylvania R. Co. v. Heileman, 49 Pa. 60, 88 Am. Dec. 482; Rhoades v. Chicago & G. T. R. Co. 58 Mich. 263; Turner v. Hannibal & St. J. R. Co. 74 Mo. 602; Gorton v. Erie R. Co. 45 N. Y. 660; Delaware, L. & W. R. Co. v. Toffey, 38 N. J. L. 625; Southern Pac. Co. v. Seley, 152 U. S. 145 (38: 391); Schaefert v. Chicago, M. & St. P. R. Co. 62 Iowa, 624. Mr. Samuel M. Hunter, for defendant in error: The jury was well warranted in finding that Do warning was given of the approach of the train, although it was going to and over the crossing at 66 feet a second. If two men of equal opportunities are observ. ing a train and one says he heard the bell ring and the other that he did not, he is as positive as the other. Scott v. Pennsylvania R. Co. 30 N.Y. S. R. 843; Perkins v. Buffalo, R. & P. R. Co. 32 N. Y. S. R. 41; Urbanek v. Chicago, M. & St. P. R. Co. 47 Wis. 59; Beckwith v. New York C. & H. R. R. Co. 54 Hun, 446; Menard v. Boston & M. R. Co. 150 Mass. 386. If the bell had been rung, as the statute requires, there is no doubt but Mrs. Griffith would have acted upon the warning and would have been saved. This was a question for the jury. Cleveland, C. & O. R. Co. v. Crawford, 24 Ohio St. 635. If from a train of cars approaching a crossing no signal is given, either by ringing the bell or sounding the whistle, the defendant's railroad company is chargeable with negligence. Renwick v. New York C. R. Čo. 36 N. Y. 132; O'Mara v. Hudson River R. Co. 38 N. Y. 445, 98 Am. Dec. 61; Gorton v. Erie R. Co. 45 N. Y. 662. It is not enough, in all cases, that the statutory signals have been given, to absolve the corporation from the charge of negligence; other precautions may be required under some circumstances. Dyer v. Erie R. Co. 71 N. Y. 228. The jury was justified in finding that negligence caused the injury. Continental Imp. Co. v. Stead, 95 U. S. 166 (24: 406); Grand Trunk R. Co. v. Ives, 144 U. S. 408-418 (36: 485-489); Jones v. East Tennessee, V. & G. R. Co. 128 U. S. 445 (32: 479); Chicago, M. & St. P. R. Co. v. Lowell, 151 U. S. 209 (38: 181). This court will not review the action of the trial court in overruling a motion for a new trial. Neither will this court review the action of the trial court in refusing to direct a verdict for the defendant, if there be any evidence to support the plaintiff's claim. Grand Trunk R. Co. v. Walker, 154 U. S. 653 APPX. (25: 977); Metropolitan R. Co. v. Moore, 121 U. S. 558-573 (30: 1022-1026). It is the province of the jury to pass upon the credibility of the witnesses and upon the consideration and weight which will be given to the testimony. Pool v. Chicago, M. & St. P. R. Co. 56 Wis. 238; Richmond & D. R. Co. v. Powers, 149 U. S. 43 (37: 642); Grand Trunk R. Co. v. Ives, 144 U. S. 408 (36: 485); Richardson v. Boston, 60 U. S. 19 How. 263 (15: 639); Pennsylvania R. Co. v. Horst, 110 Pa. 226; Carver v. Detroit & S. Pl. Road Co. 61 Mich. 584; Beckwith v. New York C. & H. R. R. Co. 54 Hun, 446, 125 N. Y. 759; Sioux City & P. R. Co. v. Stout, 84 U. S. 17 Wall. 657 (21:745); Kane v. Northern C. R. Co. 128 U. S. 91 (32: 339); Jones v. East Tennessee, V. & G. R. Co. 128 U. S. 443 (32: 478); Van Stone v. Stillwell & B. Mfg. Co. 142 U. S. 128 (35: 961). The law presumes the injured party was in the exercise of due care. The burden of proving her negligence rests upon the company. Washington & G. R. Co. v. Gladmon, 82 U. S. 15 Wall. 407 (21: 114); Baltimore & O. R. Co. v. Whitacre, 35 Ohio St. 627; Hays v. Gallagher, 72 Pa. 140; Robinson v. Gary, 28 Ohio St. 241; Street R. Co. v. Nolthenius, 40 Ohio St. 376, 380. Mrs. Griffith had a right to rely upon the company to exercise due care in all respects, and especially to give the warning required by statute. And if she acted on such reliance, she is without fault, because she had a right to presume the company would not be negligent. Meek v. Pennsylvania Co. 38 Ohio St. 632; Neuson v. New York O. R. Co. 29 N. Y. 383; Liddy v. St. Louis R. Co. 40 Mo. 507; Langhoff v. Milwaukee & P. du C. R. Co. 19 Wis. 515; Hegan v. Eighth Ave. R. Co. 15 N. Y. As to contributory negligence; imputed negligence; As to care and precaution necessary in crossing a negligence of parent or child or husband or driver; | railroad track, see note to Continental Imp. Co. v. Intoxication,-see note to Union P. R. Co. v. Bots- Stead, 24: 403. ford, 35: 734. 383; Pennsylvania R. Co. v. Ogier, 35 Pa. 60-| 72; Thomas v. Delaware, L. & W. R. Co. 8 Fed. Rep. 729; Correll v. Burlington, C. R. & M. R. Co.38 Iowa,120,18 Am. Rep. 22; Jetter v. New York & H. R. Co. 2 Keyes, 154; Baker v. Pen dergast, 32 Ohio St. 494, 30 Am. Rep. 620; Cleveland, C. C. & I. R. Co. v. Schneider, 45 Ohio St. 678; Continental Imp. Co. v. Stead, 95 U. S. 163 (24: 405); Renwick v. New York C. R. Co. 36 N. Y 132; Jones v. East Tennessee, V. & G. R. Co. 128 U. S. 445 (32: 479); Grand Trunk R. Co. v. Ives, 144 U. S. 408 (36: 485); Chicago, M. & St. P. R. Co. v. Lowell, 151 U. S. 209 (38: 131); Dublin, W. & W. R. Co. v. Slattery, L. R. 3 App. Cas. 1155; Marietta & C. R. Co. v. Picksley, 24 Ohio St. 668; Gaynor v. Old Colony & N. R. Co. 100 Mass. 208, 97 Am. Dec. 96: French v. Taunton Branch R. Co. 116 Mass. 537; Craig v. New York, N. H. & H. R. Co. 118 Mass. 431; Butler v. Milwaukee & St. P. R. Co. 28 Wis. 487; Bower v. Chicago, M. & St. P. R. Co. 61 Wis. 457; Detroit & M. R. Co. v. Van Steinburg, 17 Mich. 99. Mr. Chief Justice Fuller delivered the opinion of the court: The verdict was returned June 11, and the motion for a new trial was overruled and judg. ment entered on the verdict December 13, 1890. The circuit court gave interest on the verdict and rendered judgment for $5,154.17 and costs. Plaintiff's counsel excepted to the allowance of interest and also to the refusal of the court to permit a remittitur. Conceding that it is ordinarily within the discretion of the court below to permit or to deny a remittitur (Pacific Postal Teleg. Cable Co. v. O'Connor, 128 U. S. 394 [32: 488], and cases cited), it is argued here that interest was not allowable on verdicts under the local law; that in view of section 966 of the Revised Statutes, the judg ment was improperly increased by the inclusion thereof (Massachusetts Ben. Asso. v. Miles, 137 U. S. 689 [34: 834]), and that therefore the writ of error should be dismissed for want of jurisdiction. But if the circuit court committed error in this regard, plaintiff below brought no writ of error to correct it, and the question is not open to examination on this record. As the judgment actually rendered was for an amount which gives us jurisdiction, we cannot dismiss the writ on the ground that it should have been for less. The contention of plaintiff in error is that, on the undisputed evidence in the case, defendant in error was guilty of contributory negligence in law, and that the court erred in refusing to direct a verdict accordingly. This renders it necessary to make a brief reference to the evidence. The plaintiff was riding with her mother in a phaeton buggy from their home in the country 606] to Newark, Ohio, the *mother driving. About four miles south from Newark it was necessary to cross the track of the railroad at a place called Locust Grove Crossing, and it was there that the injury was inflicted. The railroad ran nearly north and south in a cut through a small hill, and the highway crossed it at right angles, approaching the crossing through the same hill. The track from the south came to the crossing on a curve of four degrees through the cut, which was from A twelve to eighteen feet deep, and the slope of the cut was about forty-five degrees. The bottom of the railroad cut was fifteen feet wide, and the highway as it came down to the track was about sixteen feet wide, though there was some conflict of evidence in regard to it. The train was coming from the south and the buggy was coming from the west. The field on the west of the track and on the south of the highway for a considerable number of feet and up to the crossing was covered with growing corn over ten feet high, so that by reason of the cut and the corn there was no view of the track by a person coming from the west on the highway until he got down into the railway cut. stream called Hog Run flowed westerly under the track at the bridge of the railroad, 2,430 feet south of the crossing, and, after making a curve northerly, passed under a county bridge on the highway in question. The highway from the county bridge ran easterly until about three hundred feet from the crossing, and thence due east to the crossing, and after leav ing that bridge went by a low place from which the train could be seen coming from the south, uutil it ran into the cut, which commenced about six hundred feet south of the crossing and on a curve to it. The highway proceeding towards the crossing, passed up the hill into the cut, and then there was no view of the railroad whatever to the south on account of the highway being cut down and the growing corn on that side. The highway was graded down, leaving a bank on both sides, the descent being gradual, and the highway cut deepening until it reached the place where it crossed at the railroad level at the bottom of the cut. Just as the horse aud buggy reached the west rail, a passenger train, going at the rate of forty to forty five miles an hour, and giving, as alleged, no signals of its approach to the crossing, struck [607 the horse in the neck, wrecked the buggy, knocked the plaintiff about forty feet, and inflicted permanent injuries, the mother, just before the stroke, doing all she could to pull the horse to the left, across the highway, to get it out of the way. It seems to be conceded, and properly, that the jury were justified in finding that the railroad company was guilty of negligence. The case stated in the complaint was on the common-law liability of defendant for failure to give signals, but the statutes of Ohio may be referred to as showing what constituted negligence in that regard. And they provided: 'Sec. 3336. Every company shall have attached to each locomotive engine passing upon its road a bell of the ordinary size in use on such engines, and a steam whistle; and the engineer or person in charge of an engine in motion, and approaching a turnpike, highway, or town crossing, upon the same level therewith, and in like manner when the road crosses any other traveled place, by bridge or otherwise, shall sound such whistle at a distance of at least eighty and not further than one hundred rods from the place of such crossing: and ring such bell continuously until the engine passes such road crossing; but the provisions of this section shall not interfere with the proper observance of any ordinance passed by any city or village council regulating the management of railroad locomotives and steam whistleg thereon, within the limits of such city or village. "Sec. 8337. Every engineer or person in charge of any such engine who fails to comply with the provisions of the preceding section shall be personally liable to a penalty of not less than fifty nor more than one hundred dollars, to be recovered by civil action, at the suit of the state, in the court of common pleas of any county wherein any such crossing is; and the company in whose employ such engineer or person in charge of an engine is, as well as the person himself, shall be liable in damages to any person or company injured in person or property by such neglect or act of such engineer or person." 1 Ohio Rev. Stat. 960. There was evidence that no bell was rung, 608] and that the *engine whistled, if at all, at the railroad bridge, almost half a mile from the crossing. The jury were warranted in finding that no sufficient warning was given of the approach of the train, which was running at the speed of fifty-eight to sixty-six feet a second, and that the collision was caused by the negligence of those in charge of the train. Cleveland, C. & C. R. Co. v. Crawford, 24 Ohio St. 631, 15 Am. Rep. 633. It was held in Cleveland, C. C. & I. R. Co. v. Elliott, 28 Ohio St. 340, that the omission to ring the bell or sound the whistle at public crossings is not of itself sufficient ground to authorize a recovery, if the injured party might, notwithstanding such omission, by the exercise of ordinary care, have avoided the accident. And in Pennsylvania Co. v. Rathgeb, 32 Ohio St. 66, that if all the material facts touching alleged negligence of the plaintiff be undisputed, or be found by the jury, and admit of no rational inference but that of negligence, in such case the question of contributory negligence becomes a matter of law merely, and the court should so charge the jury. But these were cases in which the court was of opinion that the omission to give the ordinary signals by bell or whistle, as in itself it did not absolve the plaintiff from the necessity of exercising ordinary care, did not furnish sufficient ground for recovery, because by due diligence in the use of ordinary precautions by the person injured, the consequence of the defendant's negligence might have been avoided. The train has the preference and right of way But it is bound to give due warning of its approach, so that the wagon may stop and allow it to pass, and to use every exertion to stop if the wagon is inevitably in the way. Such warning must be reasonable and timely. But what is reasonable and timely warning may depend on many circumstances. It cannot be such, if the speed of the train be so great as to render it unavailing. The explosion of a cannon may be said to be a warning of the coming shot; but the velocity of the latter generally outstrips the warning. The speed of a train at a crossing should not be so great as to render unavailing the warning of the whistle and bell; and this caution is especially applicable when their sound is obstructed by winds and other noises, and when intervening objects prevent those who are approaching the railroad from seeing a coming train. In such cases, if an unslackened speed is desirable, watchmen should be stationed at the crossing. "On the other hand, those who are crossing a railroad track are bound to exercise ordinary care and diligence to ascertain whether a train is approaching. They have, indeed, the greatest incentives to caution, for their lives are in imminent danger if collision happen; and hence it will not be presumed, without evidence, that they do not exercise proper care in a particular case. But notwithstanding the hazard, the infirmity of the human mind in ordinary men is such that they often do manifest a degree of negligence and temerity entirely inconsistent with the care and prudence which are required of them, such, namely, as an ordinarily prudent man would exercise under the circumstances. When such is the case, they cannot obtain reparation for their injuries, even though the railroad company be in fault. "For, conceding that the railway train bas the right of precedence of crossing, the parties are still on equal terms as to the exercise of care and diligence in regard to their relative duties. The right of precedence referred[610 to does not impose upon the wagon the whole duty of avoiding a collision. It is accompanied with, and conditioned upon, the duty of the train to give due and timely warning of its approach. The duty of the wagon to yield precedence is based upon this condition. In Continental Imp. Co. v. Stead, 95 U. Both parties are charged with the mutual 8. 161 [24: 403], which was a case of colli-duty of keeping a careful lookout for danger, sion between a train of passenger cars of the plaintiff in error and the wagon of the defendant in error, Mr. Justice Bradley, speaking for the court, stated the duties and obligations resting upon travelers and railroad companies thus: "If a railroad crosses a common road on the same level, those traveling on either bave a legal right to pass over the point of crossing, and to require due care on the part of those traveling on the other, to avoid a collision. Of course, these mutual rights have respect to other rela609] tive rights subsisting between the parties. From the character and momentum of a railroad train, and the requirements of public travel by means thereof, it cannot be expected that it shall stop and give precedence to an ap proaching wagon to make the crossing first; it is the duty of the wagon to wait for the train. 159 U.S. U. S. Book 40. and the degree of diligence to be exercised on either side is such as a prudent man would exercise under the circumstances of the case in endeavoring fairly to perform his duty. "The mistake of the defendant's counsel consists in seeking to impose on the wagon too exclusively the duty cf avoiding collision, and to relieve the train too entirely from responsi bility in the matter. Railway companies cannot expect this immunity so long as their tracks cross the highways of the country upon the same level. The people have the same right to travel on the ordinary highways as the railroad companies have to run trains on the_railroads." And see Delaware, L. & W. R. Co. v. Converse, 139 U.S.469, 472 [35: 213,215]. Tested by these principles, we think the circuit court did not err in leaving the case to the jury. |